Experts: Testimony in Silicon Valley gender bias case won't tilt jury

Associated Press

The trial of a $16 million gender bias lawsuit against one of Silicon Valley's most prestigious venture capital firms had the potential for a dramatic showdown last week when plaintiff Ellen Pao took the witness stand.

But experts say her testimony produced no big moments that could tilt the jury for or against her in the case that some say spotlights the gross underrepresentation of women at elite Silicon Valley investment companies.

Pao was facing defense attorney Lynne Hermle, who is known for her hammering cross-examinations. But during questioning, Pao remained calm and composed while providing sometimes salacious testimony in the case alleging she was passed over for a promotion by Kleiner Perkins Caufield & Byers because she is a woman and later fired after complaining.

"There were no Perry Mason moments," said Jason Knott, a Washington, D.C., attorney who has worked on employment cases and has been closely watching the trial.

Knott said Pao's task going into her testimony was to generate credibility and sympathy with the jury and avoid a meltdown. She accomplished that, Knott said, but Hermle was successful at undercutting some of her claims.

Pao's attorneys have portrayed her as the victim of a discriminatory, male-dominated culture at Kleiner Perkins, where she had to endure retaliation by a male colleague with whom she had an affair; locker-room talk by men; and the denial of a seat on the board of another company in part because she was going on maternity leave.

When she complained, she said, the firm hired a biased investigator who dismissed her allegations. When she sued, she said the firm retaliated by abruptly firing her.

Her lawsuit resumes Monday with its fourth week of testimony.

Under questioning by her own attorney Therese Lawless, Pao addressed gender imbalance in the industry, saying her lawsuit was aimed in part at creating equal opportunities for women.

"I've tried many times to bring Kleiner Perkins to the right path," she told jurors.

Hermle questioned whether Pao's motivation was altruistic and pressed her on whether she was really after a severance package when she filed her 2012 bias complaint with the firm.

Pao testified that she had requested "eight figures" to leave the firm during a meeting with Kleiner Perkins' then-chief operating officer following her complaint.

"Lynne did what she needed to do, which was to emphasize the negatives and the weaknesses in Ellen's case and to try to attack her credibility," said Kathleen Lucas, a San Francisco employment attorney who has litigated against Hermle and has been attending the trial.

Pao's months-long affair with the male colleague has figured prominently in the case. She has said the man initially pursued her relentlessly. She said she broke off the affair when she learned that he had lied about his wife leaving him. She claimed the colleague retaliated against her by leaving her out of emails and meetings — and the company did nothing when she complained.

Pao seemed to bristle at times during her time on the stand under pointed, uncomfortable questions by Hermle but didn't lose her temper or have any emotional outbursts.

For example, when Hermle asked Pao where she and the colleague had sex the first time, she said she couldn't remember.

The attorney also showed the jury emails and text messages that seemed to contradict Pao's claims that the colleague hounded her into a relationship.

In one email from 2006, after the affair began, Pao wrote that she was always looking out for the colleague— "never stopped, never will."

Hermle portrayed Pao as a chronic complainer who has twisted facts and circumstances in her lawsuit. She used Pao's own words to show Pao had not initially objected to episodes she now says made her uncomfortable, such as an alleged dinner invitation by a senior partner while his wife was out of town.

Kleiner Perkins also says Pao had a history of conflicts with her colleagues that contributed to the firm's decision to let her go.

"It's kind of a she-said, he-said case," Knott said. "Jurors will have to decide whether there are legitimate, alternate explanations for some of the events at issue."

The judge gave the jury of six men and six women a chance to submit dozens of written questions to Pao on Friday. She was asked if it was appropriate to enter into the affair and whether colleagues saw her as a difficult person who needed to get in the last word.

"Going back I would not have done it again," Pao said of the affair. "I didn't think it was inappropriate at the time."

In another response, Pao said stopping discrimination was why she filed the suit.

"It really felt like I had no choice," she said. "Kleiner Perkins was not going to change unless I pushed it."